Currently there are about 140,000 EB Green Card Visas issued each year and only a maximum of 7% can be issued to any one nationality annually. What that has meant in practice for the EB2 and EB3 categories is that b/c of the sheer number of Indian and Chinese applicants in particular, that there is a large backlog of waiting lists of people working in the US in limbo not being able to move up or on in their jobs, passing up promotions and better offers, etc. waiting for their visa number in the queue to be called.

For the EB2 category it is about a 4-6 year wait for Indians and Chinese and in the EB3 category that goes up to 10 years and beyond. Of course if the nationality cap is removed then many citizens from other countries in both these categories who had jumped ahead in the queue b/c of these limits may have to wait a bit longer.

Sadly each year many of the 140,000 green card visas go to waste with people who have abandoned their application and returned home or moved elsewhere and b/c of the nature of the law these are wasted for good. If all the green card visas that had been wasted over the last few years had allowed to be reused (so not increasing any caps just using what was already authorized by the US Congress), then the entire current backlog for EB2 and EB3 would be removed for all nations. This actually has been done once before in the early 2000s but such a “radical” or more correctly logical move would seen to be too hard in today’s politically charged, cable news driven, extreme partisan US Immigration landscape.

The startling part of this so far is that it was able to pass with such overwhelming support from Conservative and Tea Party backed Republicans and Liberal and Most Left Leaning Democrats alike. The major premise is so that the US retains high skilled talent to help grow the economy and create jobs. According to Bloomberg, only 15% of visas are granted for economic reasons, a policy that undermines U.S. companies competing in a global talent pool.

Then foreign students studying in the US account for the majority of computer science and engineering doctorates earned from U.S. institutions. (In 2006, more than 4,500 foreign students earned engineering Ph.D.’s in the U.S., almost two-thirds of the total.) There is no policy or incentivized scheme to get them to stay in the U.S. after graduation given that these immigrants have a much higher propensity to create new businesses. We have mentioned before the Duke University study found that foreign immigrants helped found more than a quarter of the technology and engineering companies established in the U.S. between 1995 and 2005 (inc. Google, Yahoo, Paypal, etc.) so a huge amount of jobs and wealth for the US and her citizens.

However there is a roadblock!

One of our “favorite” politicians, Senator Charles (Chuck) Grassley, a Republican from Iowa placed a hold on the bill now it has reach the Senate. Even though it is expected to have broad support in the Upper House of the US Congress, it is now effectively in limbo due to the actions of one Senator for reasons that are not quite clear and that he has not fully expressed. Of course Iowa whose economy is still heavily influenced by Agriculture is not really a mecca for driving US innovation and wealth and nor is it a massive location for foreign highly skilled immigrants to reside, so really this bill would have very little effect if anything there.

However Senator Grassley seemingly unilaterally has put everything on hold possibly because of an earlier 2009 H1B and L1 Visa reform bill he put before Congress with Senator Dick Durbin of Illinois which thankfully has not gone anywhere as would be a major dent in the US economy.

We hope sanity prevails as it has in the House branch of the US Congress but I certainly would not be getting to excited as with the December – January Congress recess coming up and 2012 being a Presidential election year and where partisan politics is at its peak, anything getting done sometimes is a miracle.

Cj

©2012 E3 Visa. All Rights Reserved.

Immediate relative petition

An immediate relative petition is for U.S. citizens who are interested in sponsoring one of their immediate relatives to come and live in the U.S. Immediate relatives include:

• Spouses;
• Parents; or
• Children who are under 21 years of age and unmarried.

When you file an immediate relative petition your relative will not have to wait for a visa number. If he or she is outside the U.S. they will be given a visa number immediately. If your relative is already inside the U.S. he or she will be allowed to apply to adjust his or her temporary status to “permanent resident” as soon as the petition is approved.

Preference petition

A preference petition can be filed by:

• A U.S. citizen on behalf of an unmarried adult child (21 years of age or older);
• A legal permanent resident for a spouse, unmarried child (under 21 years old), or unmarried adult child (21 years old or older); or
• An employer on behalf of an employee.

Unlike an immediate relative petition, the person for which the petition is being made must wait until a visa number is available. As there are a limited number of people who are entitled to enter the U.S. each year through the preference petition program, the application may take some time to process. Processing times will vary according to the applicant’s preference category.

Preference is given in the following order:

• First Preference: Unmarried, adult (over 21 years old) children of U.S. citizens;
• Second Preference: Spouses of lawful permanent residents and unmarried children (regardless of age) of lawful permanent residents and their children;
• Third Preference: Married sons and daughters of U.S. citizens, their spouses and their minor children;
• Fourth Preference: Brothers and sisters of adult U.S. citizens, their spouses and their minor children.

Preferences based on employment are issued in the following order:

• First Preference: Priority Workers including aliens with extraordinary abilities, outstanding professors and researchers, and certain multinational executives and managers;
• Second Preference: Members of Professions Holding Advanced Degrees or Persons of Exceptional Ability;
• Third Preference: Skilled Workers, professionals and other qualified workers;
• Fourth: Certain special immigrants including those in religious vocations;
• Fifth: Employment Creation Immigrants.

Guest Post Author

To summarize, immediate relative petitions are for the spouses, parents, and unmarried children (under 21) of U.S. citizens. Preference petitions are for everyone else wishing to sponsor an individual for permanent residence.

©2012 E3 Visa. All Rights Reserved.

The U.S. government makes only a certain number of immigrant visas (green cards) available each year and these are allocated among the various immigrant visa categories and countries from which applicants seek to immigrate. For the past few years, the number of immigrants approved for employment-based immigrant visas has been lower than the number of visas available, resulting in no backlog in visa numbers. Recently, the DOS has seen far more immigrants approved for employment-based immigrant visas and has run out of visa numbers in certain categories, causing a temporary backlog or “retrogression” of visa numbers.

When worldwide demand for employment based visas exceeds worldwide availability, immigrant visa numbers are further apportioned among the various countries from which applicants seek to emigrate. Each country has a limit and each approved applicant is “charged” against his or her country’s limit. Most countries have fewer applicants than available visa numbers. However, certain high-immigration countries often meet or exceed their chargeability limit. These countries include China, India, Mexico, and the Philippines.

Please note that for chargeability purposes, a person’s country of birth controls. A person cannot claim country of citizenship for retrogression purposes. For instance if applicant A is born in India, but possesses Canadian citizenship, applicant A will be unable to adjust status (based on EB1 or EB2) until visa numbers for India become current.

In addition, please note that a spouse can take on their spouse’s country of birth for retrogression purposes. For example, applicant A is a national of Bangladesh and applicant A’s spouse is a national of India. Applicant A’s spouse WILL be able to adjust status even though he or she was born in India because he or she can take on applicant A’s country of birth for retrogression purposes.

Immigrant visa numbers are given out according to a “first come, first serve” policy. The date an applicant first begins the green card process (often a Labor Certification Application filed with the U.S. Department of Labor or an I-140 or I-130 Petition filed with the U.S. Citizenship and Immigration Services) becomes that person’s priority date, which will determine the order in which that person will receive a visa number and thus be further processed for an immigrant visa or adjusted to immigrant status. When a retrogression occurs in visa numbers, applicants will have to “wait in line” until their priority date becomes current before they can be adjusted or receive an immigrant visa.

A visa number retrogression means that EB1, EB2 or EB3 applicants from certain high-immigration countries will not be able to apply for an immigrant visa (by filing an I-485 or through Consular processing) until a visa number becomes available for their priority date.

Supply and Demand for Visas

Visa number availability is determined by using a simple formula of supply and demand.
Each fiscal year (October 1-September 30), DOS reviews the demand for the above referenced classifications and per-country limits. If DOS finds that the demand for any of the above classifications is too high and that they do not have enough supply, they pull back the ‘priority dates’ of the visas in order to ride the wave of demand and ensure that supply is not exceeded. By pulling back the priority dates, DOS is able to regulate the flow of these visas. If the demand for a certain preference classification is too high, the visa will retrogress and will not become available until the priority date for that classification has been reached.

For instance, according to the immigrant visa bulletin that was just released for February 2008, the visa numbers for nationals of India in the EB2 category have become completely unavailable. This means that a person who filed an I-140 immigrant visa petition in the classification of EB2 category, after cannot file an adjustment of status (or consular process) until their priority date becomes current.

It is important to note however, that these priority dates are subject to change during the fiscal year. It is entirely possible that visa numbers in the EB2 category for Indian nationals could suddenly become current a few months from now or that the priority date could be reestablished. The reason for this is that the DOS is making an assessment based on what they believe will be the demand for these types of visas. It is their way of ‘testing the waters’ of demand. If a month from now, DOS reviews the demand for these visas and finds that it is not what they believed it would be, they will establish a priority date.

Consequently, if the demand is as high as first believed, they will keep the category ‘unavailable’. Right now, DOS is taking a very conservative approach to meet the their perception of demand and they will reassess their position on a monthly basis as the year moves forward. This is simply a regulatory mechanism where by DOS can control the number of visas issued in any given year to ensure that the demand does not exceed the supply.

©2012 E3 Visa. All Rights Reserved.

Thank you for taking the time to read this letter as I am sure you receive many. I am writing to you in hopes of promoting change to an issue that is close to my heart, and I believe close to yours as well.

As of November 2009, the current visa bulletins show a backlog of green card approvals all the way back to June 2002 for the employment-based third priority applications (EB3).

The effects of these delays are significant. EB3 consists of many young graduates such as myself, who graduated at the top of our class, who had to compete above and beyond the qualifications of regular graduates at every step of the way, who, like many former immigrants who came to America to seek a better life, are forced to make tough decisions in the face of these long waiting times. Some of us have been laid off, only to be given unrealistically short timeframes to find another job or go back to our home countries after decades of living abroad. Many of us simply wait in fear. Fear of the unknown and what might happen to us in the long years to come. In some ways, these restrictions stagnant those who foster ideas of entrepreneurship by preventing career change, growth and the risk-taking nature of American entrepreneurship that so evidently fuels the spirit and prosperity of this economy.

Intel, eBay, Yahoo!, Sun Microsystems, Google and many other companies were all founded by immigrants who were welcomed by America. Over the last 15 years, foreign nationals have started 25 percent of U.S. venture-backed public companies, accounting for more than $500 billion in market capitalization and adding significant value to our economy. There is a wealth of talent and ambition hidden below the covers of these immigration laws.

I arrived in Boston when I was 16 and I still remember the day I graduated (I was 20 and still couldn’t have a drink because it was illegal!) in 2004. Last month I turned 26, and I realized that I have been here for over a decade. This is the longest I have lived in any country since being on many diplomatic missions around the world with my father. When you were young, your family also lived overseas, so I know you can relate to what it feels like to have a “home country” and to have a desire to prosper and pursue happiness there.

You once said among a crowd of young students that “here in America, you write out own destiny, you make our own future” and I hope that this can one day come true when college graduates can have a realistic goal of becoming permanent residences if they work hard and believe in all that this country has to offer. When you came to Google in 2007 you told us that you would support the H1b program as well as more and faster permanent residents for those who add value to this country. Many of us here at Google as well as beyond the valley were very excited, and we remain hopeful today.

A lot of people laughed when I said that I would send you a letter. They expect me to give up. They expect that you to not read this letter. They will expect that even if you do, nothing will change.

I would like to prove them wrong. I hope that if anything, this letter will allow for a moment of consideration for actions that will speed up processing times for employment based immigration, of which many of us have already sacrificed so much for.

Sincerely,

Richard Wan

©2012 E3 Visa. All Rights Reserved.

So firstly the O1 visa;
The O visa was created for individuals of extraordinary abilities that would be of great benefit to the US.
So for example this is often used by famous entertainers, actors, athletes when they are competing in tournaments, etc. It is also used by people distinguished in other fields like business, science and education.

To qualify for this visa you must still be sponsored by a US employer or agent but also demonstrate your recognized extraordinary abilities. If you are a famous author you could do this by your book sales, a scientist could do this from world awards they have won, an athlete can point to their world ranking, etc.

Essentially you have to be in top 1-2% in your chosen profession in the world. So of course very few qualify for this visa category. The O2 visa applies to support people specifically for entertainers and athletes. So this could be crew members, agents, etc. whose primary job is working for the O1 holder in some capacity.

The O3 visa is a dependent visa for O1 holders so spouses and qualifying children would get this visa.

The EB Visas (this is essentially a green card)
You can  occasionally apply for these visas directly before being on any other visa but there is a very limited supply. Generally this is the perment residency applied for on your behalf by your employer. You have to wait for a visa number to become available and this can take many years depending on your category and country of residence.
More often than not this will happen after an employer is satisfied with you on your H1B, L1 or E3 visa.

There are five categories of employment based immigration:

• First Preference (EB-1 priority workers): aliens with extraordinary ability, outstanding professors and researchers, and certain multinational executives and managers.
• Second Preference (EB-2 workers with advanced degrees or exceptional ability): aliens who are members of the professions holding advanced degrees or their equivalent and aliens who because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy, cultural, or educational interests or welfare of the United States.
• Third Preference (EB-3 professionals, skilled workers, and other workers): aliens with at least two years of experience as skilled workers, professionals with a baccalaureate degree, and others with less than two years experience, such as an unskilled worker who can perform labor for which qualified workers are not available in the United States.
• Fourth Preference (EB-4 special workers such as those in a religious occupation or vocation): aliens who, for at least two years before applying for admission to the United States, have been a member of a religious denomination that has a non-profit religious organization in the United States, and who will be working in a religious vocation or occupation at the request of the religious organization.
• Fifth Preference (EB-5 Investment/Employment Creation) If you would like to be granted immigrant status in the United States for the purpose of engaging in a new commercial enterprise,
• There is also Schedule A Workers whom are Health care workers and aliens of exceptional ability.

I hope this help provides some context as to other types of visa.

Till Next Time….

CJ

©2012 E3 Visa. All Rights Reserved.